What is the Blood-Borne Disease Presumption?

Labor Code Section 3212.8 Provides:

“(a) In the case of members of a sheriff’s office, of police or fire departments of cities, counties, cities and counties, districts, or other public or municipal corporations or political subdivisions, or individuals described in Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2 of the Penal Code, whether those persons are volunteer, partly paid, or fully paid, and in the case of active firefighting members of the Department of Forestry and Fire Protection, or of any county forestry or firefighting department or unit, whether voluntary, fully paid, or partly paid, excepting those whose principal duties are clerical or otherwise do not clearly fall within the scope of active law enforcement service or active firefighting services, such as stenographers, telephone operators, and other office workers, the term “injury” as used in this division, includes a blood-borne infectious disease or methicillin-resistant Staphylococcus aureus skin infection when any part of the blood-borne infectious disease or methicillin-resistant Staphylococcus aureus skin infection develops or manifests itself during a period while that person is in the service of that office, staff, division, department, or unit. The compensation that is awarded for a blood-borne infectious disease or methicillin-resistant Staphylococcus aureus skin infection shall include, but not be limited to, full hospital, surgical, medical treatment, disability indemnity, and death benefits, as provided by the workers’ compensation laws of this state.

(b)

(1) The blood-borne infectious disease or methicillin-resistant Staphylococcus aureus skin infection so developing or manifesting itself in those cases shall be presumed to arise out of and in the course of the employment or service. This presumption is disputable and may be controverted by other evidence, but unless so controverted, the appeals board is bound to find in accordance with it.

(b)

(1) The blood-borne infectious disease or methicillin-resistant Staphylococcus aureus skin infection so developing or manifesting itself in those cases shall be presumed to arise out of and in the course of the employment or service. This presumption is disputable and may be controverted by other evidence, but unless so controverted, the appeals board is bound to find in accordance with it.

(2) The blood-borne infectious disease presumption shall be extended to a person covered by subdivision (a) following termination of service for a period of three calendar months for each full year of service, but not to exceed 60 months in any circumstance, commencing with the last date actually worked in the specified capacity.

(3) Notwithstanding paragraph (2), the methicillin-resistant Staphylococcus aureus skin infection presumption shall be extended to a person covered by subdivision (a) following termination of service for a period of 90 days, commencing with the last day actually worked in the specified capacity.

(c) The blood-borne infectious disease or methicillin-resistant Staphylococcus aureus skin infection so developing or manifesting itself in those cases shall in no case be attributed to any disease or skin infection existing prior to that development or manifestation.

(d) For the purposes of this section, “blood-borne infectious disease” means a disease caused by exposure to pathogenic microorganisms that are present in human blood that can cause disease in humans, including those pathogenic microorganisms defined as blood-borne pathogens by the Department of Industrial Relations.”

Who does it apply to?

This presumption is more extensive and applies both to Police and Safety more than other presumptions.  The definition for the positions for which the presumption applies is expansive.  You should consult with your Department to see it applies. Alternatively, consultation with an attorney is recommended.

How does one generally get a Blood-Borne Disease?

Exposures to blood and other body fluids can occur across a wide variety of Safety and Police Occupations. First Responders or Law Enforcement Officers can be exposed to blood and bodily fluids via many mechanisms.  These mechanisms include needle sticks, being splashed with blood or body fluids on the mucous membranes which includes the mouth, eyes, and nose, and human bites.

Contact with blood-borne pathogens falls into two main categories: first, exposure can be characterized as direct in which there is an open lesion on the skin or mucous membrane or second, indirect, in which there is a via punctures by contaminated sharps or needles.  Blood-Borne pathogens will enter the body through blood or other potentially infectious materials such as body fluids, amniotic fluid, semen, and vaginal fluids.

What Body Parts and/or Diseases can the Presumption apply to?

Blood-Borne pathogens are microorganisms such as viruses or bacteria that are carried in human blood. These viruses and bacteria can cause a variety of diseases in humans.

The following is a list of common Blood-Borne diseases:

  • AIDS
  • Arboviral Infections (ie Colorado Tick Fever)
  • Babesiosis
  • Brucellosis
  • Creutzfeldt-Jakob disease
  • Hepatitis B
  • Hepatitis C
  • Hepatitis D
  • HIV
  • Human T-lymphotropic Virus Type I
  • Leptospirosis
  • Malaria
  • Relapsing Fever
  • Syphilis
  • Viral Hemorrhagic Fever

Note: Hepatitis A and E are spread by fecal contamination. Although they may not fall within the Blood-Borne Presumption, many safety personnel become exposure to feces in the performance of their jobs.  This is highly prevalent when working at a correctional facility.  Therefore, if one is diagnosed with these forms of Hepatitis, a workers’ compensation claim filing should strongly be considered.

There has been some recent litigation on the presumption concerning body parts.  The case involved the mechanism of injury. In the case, the Injured Worker’s bacterial infection in his colon spread to his blood. The WCAB interpreted Labor Code § 3212.8 to include applicant’s injury when they employed the plain and ordinary meaning of statutory language, and that medical evidence established that applicant sustained injury in form of “disease caused by exposure to pathogenic microorganisms that are present in human blood that can cause disease in humans. Avi Azoulay v. City of Orange, 2016 Cal. Wrk. Comp. P.D. LEXIS 607.

Can the Presumption be rebutted?

Yes. The statute provides that it is disputable and may be controverted by other evidence.  This provision of the statute is quite vague.  Generally, the term other evidence would imply testimony, medical records or medical opinion.  Therefore, there is the requirement that the Employer produce actual evidence in order to controvert the presumption.

How can the Presumption be rebutted?

There a number of possible ways that the Presumption could be controverted. There could be evidence of to show that the disease was a pre-existing medical condition that the Injured Worker had prior to the start of their employment.  Another way to rebut the presumption would be to show that the Injured Worker had a non-industrial blood transfusion for which they contracted a disease.  Finally, other ways an Employer could controvert a claim would be if it could be show that the Injured Worker engaged in either high-risk sexual behavior or intravenous drug use.  Finally,  non-industrial exposure would be an Injured Worker traveling to an area which is a vector that contained insects. For instance, if an Injured Worker traveled on vacation to an area of Africa or South America where there were mosquitos were prevalent.

With more than 23 years of expertise in defending workers’ rights, the Law Offices of Edward J. Singer, A Professional Law Corporation, is here to assist. If you have any questions concerning your rights, please do not hesitate to contact our offices.  Please contact us today concerning any workers’ compensation questions or issues.